David
Andrew White, a Florida prisoner proceeding pro se,
filed a petition for writ of habeas corpus under 28 U.S.C.
§ 2254. (Dkt. 1.) He challenges a judgment entered by
the Circuit Court for the Sixth Judicial Circuit, in and for
Pasco County, Florida, in 2008. In its response, Respondent
agrees that the petition is timely. (Dkt. 20.) White filed a
reply. (Dkt. 32.) White's petition is due to be denied.

PROCEDURAL
HISTORY

A jury
convicted White of one count of second degree murder. (Dkt.
25, Ex. 3.) The trial court sentenced him to forty-six years
in prison, with ten years suspended. (Dkt. 25, Ex. 7.) The
state appellate court per curiam affirmed the
conviction and sentence. (Dkt. 25, Exs. 11, 12.) White filed
a motion and amended motion for postconviction relief under
Florida Rule of Criminal Procedure 3.850. (Dkt. 25, Exs. 16,
18.) The state court summarily denied relief. (Dkt. 25, Exs.
19, 21.) The state appellate court per curiam
affirmed the lower court. (Dkt. 25, Ex. 24.) White also filed
a motion to correct illegal sentence under Florida Rule of
Criminal Procedure 3.800(a). (Dkt. 25, Ex. 32.) The state
court denied his motion, and the state appellate court
per curiam affirmed the order of denial. (Dkt. 25,
Exs. 33, 37.)

Andrea
White went missing on the night of July 11, 2005. Her
husband, Petitioner David White, told numerous family members
and acquaintances that they got into an argument and she left
their home that night. The couple was known to have marital
difficulties. On July 12, White did not go to work, telling
his boss that Andrea left and he was attempting to get
custody of their daughters. That day, Andrea's best
friend, Desiree Patton, repeatedly attempted to call Andrea
but could not reach her. Concerned, Patton called White and
went to the Whites' house. White told her that Andrea, a
diabetic, took her insulin with her when she left. But when
Patton looked inside Andrea's purse, which she had
apparently left behind in the house, she saw Andrea's
pouch of insulin and syringes. In Patton's experience,
Andrea never left home without insulin. Andrea also noticed
damp pillows in the laundry area.

Deputy
Norman Gay of the Pasco County Sheriff's Office responded
to the Whites' home that evening to perform a welfare
check on Andrea.[2] White told him that Andrea left on foot
following the argument. But, when Gay confronted him with
Patton's statement that White told her Andrea left in a
blue car, White agreed that he believed Andrea got into an
unknown blue car. White left for New York with his and
Andrea's two daughters. He stayed with family when he
arrived there.

On July
14, Andrea White's body was found in a shallow retention
pond near Cheltnam Court. Her death was from homicidal
violence of undetermined etiology. The circumstances in which
she was found-in a remote area, barefoot and wearing night
clothes, and about five miles from her home-were crucial to
this conclusion. When her body was found, she likely had been
dead for days. Evidence suggested her body may have been in
the water since the morning of July 12.[3] Police learned
that White, who had worked maintaining rental homes, had
worked on a home on Cheltnam Court.

Detectives
from the Pasco County Sheriff's Office arrived in New
York on July 15. White spoke to them in New York and agreed
to return to Florida with them. He gave an interview at the
Sheriff's Office upon arriving in Florida. Meanwhile,
several of Andrea's family members had stayed at the
house after Andrea's body was found. White was arrested
almost a year later, in June 2006, in New York.

STANDARD
OF REVIEW

The
Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”) governs this proceeding. Wilcox v.
Florida Dep't of Corr.,158 F.3d 1209, 1210 (11th
Cir. 1998), cert. denied,531 U.S. 840 (2000).
Habeas relief can only be granted if a petitioner is in
custody “in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. §
2254(a). Section 2254(d), which sets forth a highly
deferential standard for federal court review of a state
court adjudication, states:

An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim-

(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
or

(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.

In sum, § 2254(d)(1) places a new constraint on the
power of a federal habeas court to grant a state
prisoner's application for a writ of habeas corpus with
respect to claims adjudicated on the merits in state court.
Under § 2254(d)(1), the writ may issue only if one of
the following two conditions is satisfied-the state-court
adjudication resulted in a decision that (1) “was
contrary to . . . clearly established Federal Law, as
determined by the Supreme Court of the United States”
or (2) “involved an unreasonable application of . . .
clearly established Federal law, as determined by the Supreme
Court of the United States.” Under the “contrary
to” clause, a federal habeas court may grant the writ
if the state court arrives at a conclusion opposite to that
reached by this Court on a question of law or if the state
court decides a case differently than this Court has on a set
of materially indistinguishable facts. Under the
“unreasonable application” clause, a federal
habeas court may grant the writ if the state court identifies
the correct governing legal principle from this Court's
decisions but unreasonably applies that principle to the
facts of the prisoner's case.

“The
focus . . . is on whether the state court's application
of clearly established federal law is objectively
unreasonable . . . an unreasonable application is different
from an incorrect one.” Bell v. Cone, 535 U.S.
685, 694 (2002). “As a condition for obtaining habeas
corpus from a federal court, a state prisoner must show that
the state court's ruling on the claim being presented in
federal court was so lacking in justification that there was
an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.”
Harrington v. Richter, 562 U.S. 86, 103 (2011).
Accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir.
2001) (“It is the objective reasonableness, not the
correctness per se, of the state court decision that
[the federal court is] to decide.”). The phrase
“clearly established Federal law” encompasses
only the holdings of the United States Supreme Court
“as of the time of the relevant state-court
decision.” Williams, 529 U.S. at 412.

The
purpose of federal review is not to re-try the case.
“The [AEDPA] modified a federal habeas court's role
in reviewing state prisoner applications in order to prevent
federal habeas ‘retrials' and to ensure that
state-court convictions are given effect to the extent
possible under law.” Cone, 535 U.S. at 693. In
other words, “AEDPA prevents defendants-and federal
courts-from using federal habeas corpus review as a vehicle
to second-guess the reasonable decisions of state
courts.” Renico v. Lett, 559 U.S. 766, 779
(2010). See also Cullen v. Pinholster,563 U.S. 170,
181 (2011) (“This is a ‘difficult to meet, '
. . . and ‘highly deferential standard for evaluating
state-court rulings, which demands that state-court decisions
be given the benefit of the doubt' . . . .”)
(citations omitted).

The
state appellate court affirmed the denial of White's
postconviction motions in per curiam decisions
without written opinions. These decisions warrant deference
under Section 2254(d)(1) because “the summary nature of
a state court's decision does not lessen the deference
that it is due.” Wright v. Moore, 278 F.3d
1245, 1254 (11th Cir.), reh'g and reh'g en banc
denied,278 F.3d 1245 (2002), cert. denied sub nom.
Wright v. Crosby,538 U.S. 906 (2003). See also
Richter, 562 U.S. at 99 (“When a federal claim has
been presented to a state court and the state court has
denied relief, it may be presumed that the state court
adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the
contrary.”).

Review
of the state court decision is limited to the record that was
before the state court. Pinholster, 563 U.S. at
181-82. White bears the burden of overcoming by clear and
convincing evidence a state court factual determination.
“[A] determination of a factual issue made by a State
court shall be presumed to be correct. The applicant shall
have the burden of rebutting the presumption of correctness
by clear and convincing evidence.” 28 U.S.C. §
2254(e)(1). This presumption of correctness applies to a
finding of fact but not to a mixed determination of law and
fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir.
2001).

EXHAUSTION
OF STATE COURT REMEDIES; PROCEDURAL DEFAULT

Before
a district court can grant habeas relief to a state prisoner
under § 2254, the petitioner must exhaust all state
court remedies that are available for challenging his
conviction, either on direct appeal or in a state
postconviction motion. 28 U.S.C. § 2254(b)(1)(A);
O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999)
(“[T]he state prisoner must give the state courts an
opportunity to act on his claims before he presents those
claims to a federal court in a habeas petition.”).
See also Henderson v. Campbell, 353 F.3d 880, 891
(11th Cir. 2003) (“A state prisoner seeking federal
habeas relief cannot raise a federal constitutional claim in
federal court unless he first properly raised the issue in
the state courts.”) (citations omitted). A state
prisoner “‘must give the state courts one full
opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate
review process, ' including review by the state's
court of last resort, even if review in that court is
discretionary.” Pruitt v. Jones, 348 F.3d
1355, 1358-59 (11th Cir. 2003) (quoting
O'Sullivan, 526 U.S. at 845).

To
exhaust a claim, a petitioner must make the state court aware
of both the legal and factual bases for his claim. See
Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir.
1998) (“Exhaustion of state remedies requires that the
state prisoner ‘fairly presen[t] federal claims to the
state courts in order to give the State the opportunity to
pass on and correct alleged violations of its prisoners'
federal rights.'”) (quoting Duncan v.
Henry, 513 U.S. 364, 365 (1995)). A federal habeas
petitioner “shall not be deemed to have exhausted the
remedies available in the courts of the State . . . if he has
the right under the law of the State to raise, by any
available procedure, the question presented.”
Pruitt, 348 F.3d at 1358. The prohibition against
raising an unexhausted claim in federal court extends to both
the broad legal theory of relief and the specific factual
contention that supports relief. Kelley v. Sec'y,
Dep't of Corr., 377 F.3d 1317, 1344 (11th Cir.
2004). The requirement of exhausting state remedies as a
prerequisite to federal review is satisfied if the petitioner
“fairly presents” his claim in each appropriate
state court and alerts that court to the federal nature of
the claim. 28 U.S.C. § 2254(b)(1); Picard v.
Connor, 404 U.S. 270, 275-76 (1971).

The
doctrine of procedural default provides that “[i]f the
petitioner has failed to exhaust state remedies that are no
longer available, that failure is a procedural default which
will bar federal habeas relief, unless either the cause and
prejudice or the fundamental miscarriage of justice exception
is established.” Smith v. Jones, 256 F.3d
1135, 1138 (11th Cir. 2001). To establish cause for a
procedural default, a petitioner “must demonstrate that
some objective factor external to the defense impeded the
effort to raise the claim properly in state court.”
Wright v. Hopper, 169 F.3d 695, 703 (11th Cir.
1999). See also Murray v. Carrier, 477 U.S. 478
(1986). To show prejudice, a petitioner must demonstrate not
only that the errors at his trial created the possibility of
prejudice but that they worked to his actual and substantial
disadvantage and infected the entire trial with error of
constitutional dimensions. United States v. Frady,
456 U.S. 152, 170 (1982). The petitioner must show at least a
reasonable probability of a different outcome.
Henderson, 353 F.3d at 892; Crawford v.
Head, 311 F.3d 1288, 1327-28 (11th Cir. 2002).

Alternatively,
a petitioner may obtain federal habeas review of a
procedurally defaulted claim if review is necessary to
correct a fundamental miscarriage of justice. Edwards v.
Carpenter, 529 U.S. 446, 451 (2000); Carrier,
477 U.S. at 495-96. A fundamental miscarriage of justice
occurs in an extraordinary case where a constitutional
violation has probably resulted in the conviction of someone
who is actually innocent. Schlup v. Delo, 513 U.S.
298, 327 (1995); Henderson, 353 F.3d at 892. This
exception requires a petitioner's “actual”
innocence. Johnson v. Alabama, 256 F.3d 1156, 1171
(11th Cir. 2001). To meet this standard, a petitioner must
show a reasonable likelihood of acquittal absent the
constitutional error. Schlup, 513 U.S. at 327.

INEFFECTIVE
ASSISTANCE OF COUNSEL

Claims
of ineffective assistance are analyzed under the test set
forth in Strickland v. Washington, 466 U.S. 668
(1984). A petitioner must show both deficient performance by
counsel and resulting prejudice. Demonstrating deficient
performance “requires showing that counsel made errors
so serious that counsel was not functioning as the
‘counsel' guaranteed the defendant by the Sixth
Amendment.” Id. at 687. Deficient performance
is established if, “in light of all the circumstances,
the identified acts or omissions [of counsel] were outside
the wide range of professionally competent assistance.”
Id. at 690. However, “counsel is strongly
presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable
professional judgment.” Id. Additionally,
“a court deciding an actual ineffectiveness claim must
judge the reasonableness of counsel's challenged conduct
on the facts of the particular case, viewed as of the time of
counsel's conduct.” Id.

White
must demonstrate that counsel's alleged error prejudiced
the defense because “[a]n error by counsel, even if
professionally unreasonable, does not warrant setting aside
the judgment of a criminal proceeding if the error had no
effect on the judgment.” Id. at 691-92. To
show prejudice, a petitioner must demonstrate “a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Id. at 694. A petitioner cannot meet
his burden merely by showing that counsel's choices were
unsuccessful:

The test has nothing to do with what the best lawyers would
have done. Nor is the test even what most good lawyers would
have done. We ask only whether some reasonable lawyer at the
trial could have acted, in the circumstances, as defense
counsel acted at trial . . . . We are not interested in
grading lawyers' performances; we are interested in
whether the adversarial process at trial, in fact, worked
adequately.

Sustaining
a claim of ineffective assistance of counsel on federal
habeas review is difficult because “[t]he standards
created by Strickland and § 2254(d) are both
‘highly deferential, ' and when the two apply in
tandem, review is ‘doubly' so.”
Richter, 562 U.S. at 105 (citations omitted).
See also Pinholster, 563 U.S. at 202 (a petitioner
must overcome the “‘doubly deferential'
standard of Strickland and AEDPA.”). If a
claim of ineffective assistance of counsel can be resolved
through one of the Strickland test's two prongs,
the other prong need not be considered. Strickland,
466 U.S. at 697 (“[T]here is no reason for a court
deciding an ineffective assistance claim . . . to address
both components of the inquiry if the defendant makes an
insufficient showing on one.”)

DISCUSSION

Ground
One

White
alleges that the State's failure to present sufficient
evidence of second degree murder resulted in a federal due
process violation. He argues that the State did not show that
Andrea died due to “the criminal agency of another
person, ” rather than as a result of natural or
accidental causes. (Dkt. 1, p. 5.)

A
review of the trial transcript shows that the State's
evidence of White's guilt was circumstantial. And White
stated in his brief that the evidence of a criminal act was
circumstantial. (Dkt. 25, Ex. 2; Ex. 9, pp. 11-12.)
Florida's standard of review for circumstantial evidence
cases provides that “‘[w]here the only proof of
guilt is circumstantial, no matter how strongly the evidence
may suggest guilt, a conviction cannot be sustained unless
the evidence is inconsistent with any reasonable hypothesis
of innocence.'” Preston v. Sec'y, Fla.
Dep't of Corr., 785 F.3d 449, 460 (11th Cir. 2015)
(quoting Thorp v. State, 777 So.2d 385, 389 (Fla.
2000)). This involves a higher standard of proof than the
federal sufficiency of the evidence standard applied in
Jackson v. Virginia, 443 U.S. 307 (1979). See
Id. at 451 (Florida uses a “heightened burden of
proof for cases involving circumstantial evidence.”).

White
raised only state law to support his argument when he brought
it on direct appeal. (Dkt. 25, Ex. 9, pp. 11-14.) He did not
cite Jackson or refer to any federal authority or
constitutional provision. (Id.) His reliance on
state law in this circumstantial evidence case, without any
mention of federal law, was insufficient to exhaust a federal
claim in state court. See id. at 460-62. State
procedural rules do not provide for successive direct
appeals. See Fla. R. App. P. 9.140. Therefore,
White's unexhausted claim is procedurally defaulted.
See Smith, 256 F.3d at 1138. White does not argue or
demonstrate that an exception applies to overcome the
default. The claim presented in Ground One is procedurally
barred from federal habeas review.

Ground
Two

The
State theorized that White smothered Andrea with a pillow.
White alleges that trial counsel was ineffective for failing
to investigate and file a motion to suppress the pillows
found in the home. He further claims that counsel should have
moved to suppress Andrea's purse, which was also
recovered from the Whites' home. White alleges that
Desiree Patton and Andrea's family members may have
tampered with these items when they entered the house during
his absence.

Defendant alleges ineffective assistance of counsel for
failing to investigate and file a proper motion to suppress.
Defendant alleges that the pillow that the State asserted was
the murder weapon should have been suppressed because the
victim's mother and friends lived at the house where the
crime took place for three days before the police
investigation began. Defendant asserts that if the pillows
were washed, as the State alleged, they could have been
washed within the three days that these people were staying
at the house. The State's argument being that the
Defendant washed the pillows to conceal evidence of the
crime.

The Defendant also claims that the purse of the victim should
have also been suppressed because this evidence also had the
potential to be tampered with while the guests were staying
at the house prior to the police investigation. Defendant
alleges he was prejudiced by this evidence being introduced
because the State was allowed to draw inferences from them to
persuade the jury that the Defendant was guilty.

With regard to the pillows, the record refutes the
Defendant's claim. The pillows were never introduced into
evidence, and therefore trial counsel cannot be deemed
ineffective for failing to move to suppress them.
Furthermore, defense counsel argued in closing argument that
the State lacked sufficient evidence by referencing the fact
that the pillows were never introduced at trial.

With regard to the victim's purse and its contents, the
Defendant has not stated any valid basis to suppress this
item. All relevant evidence is admissible at trial except as
otherwise provided by law. See § 90.402,
Florida Statutes. Relevant evidence is evidence is evidence
tending to prove or disprove a material fact. § 90.401,
Florida Statutes.

Furthermore, the record refutes the Defendant's claim
that the purse was “planted” after he vacated the
premises. There was ample testimony at trial, including the
Defendant's own, that shows that the victim's purse
was found at the house the day after the victim disappeared
while the Defendant was still living there. Lastly, Officer
Norman Gay, arriving at the house in response to a report by
the victim's mother that the victim was missing,
testified that he spoke to the Defendant about the purse and
that the Defendant told the officer that he had put the purse
in the closet and that the victim's insulin was in the
purse. Therefore, the evidence indicates that the purse and
the insulin inside the purse were found while the Defendant
was still living in the house.

Lastly, defense counsel did argue that the purse identified
by the victim's friend as the one she took out of the
closet was not the actual purse pulled out of the closet, and
that this was supported by the testimony of the Defendant and
other witnesses. The State notes in its response that
discrepancies in evidence are decided by the jury - they are
not a basis to suppress evidence. See Hertz v.
State, 803 So.2d 629, 647 (Fla. 2001); I.R. v.
State, 385 So.2d 686 (Fla. 3d DCA 1980). The Defendant
has failed to sufficiently show ineffectiveness of counsel.
This claim is denied.

(Dkt. 25, Ex. 21) (court's record citations omitted).

The
state court determined that no basis for suppression existed.
This Court must accept the state court's conclusion that,
under Florida evidentiary law, [4] counsel had no grounds to seek
suppression. See, e.g., Herring v. Sec'y, Dep't
of Corr., 397 F.3d 1338, 1354-55 (11th Cir. 2005)
(“The Florida Supreme Court already has told us how the
issues would have been resolved under Florida state law had
[petitioner's counsel] done what [petitioner] argues he
should have done. . . . It is a ‘fundamental principle
that state courts are the final arbiters of state law, and
federal habeas courts should not second-guess them on such
matters.'”) (quoting Agan v. Vaughn, 119
F.3d 1538, 1549 (11th Cir. 1997)); Callahan v.
Campbell, 427 F.3d 897, 932 (11th Cir. 2005)
(“[T]he Alabama Court of Criminal Appeals has already
answered the question of what would have happened had
[petitioner's counsel] objected to the introduction of
[petitioner's] statements based on [state law]-the
objection would have been overruled. . . . Therefore,
[petitioner's counsel] was not ineffective for failing to
make that objection.”). See also Bradshaw v.
Richey, 546 U.S. 74, 76 (2005) (“We have
repeatedly held that a state court's interpretation of
state law . . . binds a federal court sitting in habeas
corpus.”).

White
has not shown that the state court's determination was
contrary to or an unreasonable application of clearly
established federal law, or was based on an unreasonable
determination of the facts. He is not entitled to relief on
Ground Two.

Ground
Three

White
alleges that trial counsel was ineffective for failing to
argue that his statements to detectives in New York, in
transit from New York to Florida, and at the police station
upon returning to Florida were obtained in violation of his
constitutional rights. Specifically, he asserts that law
enforcement conducted custodial interrogations without
providing him warnings under Miranda v. Arizona, 384
U.S. 436 (1966). White claims that he was not free to leave
because “from the time [he] met with the Florida
detectives in New York he was under [police] supervision and
control.” (Dkt. 1, p. 9.)

Under
the Fifth Amendment, an individual has a “privilege . .
. not to be compelled to incriminate himself.”
Id. at 439. Whether White was in custody when he
spoke to police matters because “the right to
Miranda warnings attaches when a custodial
interrogation begins.” United States v. Brown,
441 F.3d 1330, 1347 (11th Cir. 2006).[5] Determining custody involves
examining the circumstances surrounding the interrogation and
whether, under those circumstances, a reasonable person would
have felt he or she was not at liberty to terminate the
interrogation and leave. Thompson v. Keohane, 516
U.S. 99, 112 (1995). While a court determining whether an
individual was in custody must examine all of the
circumstances of the interrogation, “the ultimate
inquiry is simply whether there [was] a ‘formal arrest
or restraint on freedom of movement' of the degree
associated with a formal arrest.” Stansbury v.
California, 511 U.S. 318, 322 (1994) (quoting
California v. Beheler, 463 U.S. 1121, 1125 (1983))
(internal quotation marks omitted). See alsoMiranda, 384 U.S. at 444 (“By custodial
interrogation, we mean questioning initiated by law
enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any
significant way.”). “The test is objective: the
actual, subjective beliefs of the defendant and the
interviewing officer on whether the defendant was free to
leave are irrelevant.” United States v. Moya,
74 F.3d 1117, 1119 (11th Cir. 1996.)

The
state court rejected White's claim of ineffective
assistance of counsel, finding that White was not in custody
when he spoke to officers:

Defendant alleges ineffective assistance of counsel for
failure to raise Miranda violations. Defendant claims it was
a violation of Miranda for Detectives from Florida to travel
to New York to inform the Defendant that his wife had died
and to ask him questions and search the house at which he was
staying in New York. This was not a violation of Miranda
because there was no custodial interrogation involved and
therefore no Miranda warnings were necessary. See Ramirez
v. State, 739 So.2d 568 (Fla. 1999).

Defendant also claims it was a violation Miranda for the
Detectives to escort Defendant home on a flight from New York
to Florida without reading him his warnings. Defendant does
not allege that any questioning went on during this flight
and therefore no Miranda issues exist. Id. However,
Defendant claims that upon landing, the Detectives drove the
Defendant directly to the police station where he was placed
in an interrogation room and was questioned for hours.
Defendant claims that because the interrogation was not
recorded, the Detectives did not Mirandize him before they
started the questioning and that counsel should have moved to
suppress any statements made by Defendant in this interview.
Defendant alleges he was prejudiced because the State was
able to admit conflicting statements made by Defendant in
response to questions asked by the Detectives.

The Defendant's claim is refuted by the record. The
Defendant testified at trial that he voluntarily spoke with
Detective Mazza in New York and that he voluntarily returned
to Florida. Most importantly, the Defendant testified that he
initially consented to the interview at the police station
and when he stopped the interview, the officers drove him
home. Specifically, the State points to Defendant's
testimony that Detective Sessa asked him if he was willing to
talk to which Defendant responded “What choice do I
have at that point? Just told me I can't go anywhere. I
said yes.” The State further notes in a footnote in its
response, that while Defendant testified at that point that
he could not leave, the rest of the Defendant's testimony
contradicts that statement, specifically where the Defendant
testified that the officers drove him home when he stopped
the interview and refused to waive his rights. Furthermore,
aside from the Defendant's internally contradictory
testimony, Detectives Sessa and Mazza testified in
contradiction with the Defendant's assertion that he was
told he was not allowed to leave. Detective Mazza testified
that the Defendant agreed to be interviewed before going home
after the flight from New York because he “wanted to
get it over with.” The Defendant testified that
Detective Mazza told him to sign a release form but that upon
his refusal, the detective stated, “well, then I'll
take you home.” Consequently, there was no violation of
Miranda in this situation. The Defendant spoke to the
officers voluntarily and was not in custody, therefore no
Miranda warnings were necessary and there was no basis for
which defense counsel could have moved to suppress the
Defendant's statements. This claim is denied.

White
has not shown he was in custody when he talked to Detective
Lisa Mazza in New York about Andrea's disappearance.
White agreed to talk with Mazza and was cooperative during
their conversation. (Dkt. 25, Ex. 2D, pp. 538, 542; Ex. 2H,
p. 1198.) White was not under arrest. They met at White's
brother's house and talked outside by a bonfire. (Dkt.
25, Ex. 2D, pp. 538, 474-75; Ex. 2H, p. 1198). See, e.g.,
Brown, 441 F.3d at 1348 (“Although the location of
the interview is surely not dispositive in determining
whether the interviewee was in custody, [c]ourts are much
less likely to find the circumstances custodial when the
interrogation occurs in familiar or at least neutral
surroundings, such as the suspect's home.”)
(quoting United States v. Ritchie, 35 F.3d 1477,
1485 (10th Cir. 1994)) (internal quotation marks omitted)
(emphasis original). There is no indication that White sought
to leave, asked police to leave, or decided he no longer
wanted to speak to them. At the end of the meeting, White
agreed when Mazza asked him to return to Florida with her.
(Dkt. 25, Ex. 2D, p. 483-84; Ex. 2H, p. 1200.) White has not
shown any Miranda violation when he met with
detectives at his brother's house in New York.

Nor
does White show any Miranda violation during travel
from New York to Florida. White voluntarily agreed to return
to Florida with police. (Dkt. 25, Ex. 2D, pp. 483-84; Ex. 2H,
p. 1200.) Police picked him up at his sister's house the
day after he talked to Mazza. (Dkt. 25, Ex. 2D, p. 484; Ex.
2E, p. 567; Ex. 2H, p. 1201.) Mazza testified that they had
“casual” conversation at the airport, and White
testified that Mazza asked him about his relationship with
Andrea in the days prior to her disappearance. (Dkt. 25, Ex.
2E, p. 569; Ex. 2H, p. 1202.) However, the record contains no
indication that he changed his mind and wanted to stay in New
York or that he became unwilling to talk to law enforcement.
White was not under arrest, and there is no evidence that
White's contact with officers during transit was
involuntary at any time. The record therefore supports the
state court's finding that Miranda was not
required because White was not in custody.

Finally,
the detectives' testimony supports the finding that White
was not subject to custodial interrogation when White spoke
to Sergeant James Sessa upon returning to Florida. Mazza
testified that when she told him the interview would take
place after they arrived in Florida, “He's like,
good. He wanted to get it over with.” (Dkt. 25, Ex. 2E,
p. 573.) Sessa testified that White agreed to talk and was
cooperative. (Dkt. 25, Ex. 2G, pp. 897, 898.)[7] Sessa further
testified that White was informed he was not under arrest and
was free to leave at any time. (Id., p. 897.)
Therefore, there is record support for the state court's
conclusion that counsel did not perform deficiently for not
seeking to suppress White's statements because he was not
in custody.

However,
White testified that he was not permitted to leave the
interview room when he tried to do so. (Dkt. 25, Ex. 2H, p.
1204.)[8] Even assuming that counsel was deficient
for not moving to suppress White's statements in light of
his recollection of the interview, he does not demonstrate
resulting prejudice. The crux of his comments to Sessa were
introduced through other witnesses.[9]

White
told Sessa about difficulties in the marriage. Sessa
testified that White reported problems with Andrea, whom he
called a “bitch.” (Dkt. 25, Ex. 2G, p. 899.) He
also said Andrea was not happy with him and threatened to
take the children. (Id.) Other witnesses testified
to White's statements about marital trouble and potential
child custody issues. Gay testified that White told him that
Andrea was considering divorce. (Dkt. 25, Ex. 2C, p. 313.)
Susan Gula testified that White brought up his martial
problems and stated that Andrea was going to leave him.
(Id., pp. 401-03.) Rhonda Draper testified that
White told her he would never let Andrea have the children.
(Dkt. 25, Ex. 2D, p. 430.) Marianne Salo testified that White
told her Andrea was crazy and that they fought. (Dkt. 25, Ex.
2E, p. 700-01.) Rod Mick testified that White discussed
marital difficulties, said Andrea was insane, and stated that
he could not leave because he would lose the children. (Dkt.
25, Ex. 2G, pp. 814-16, 822.) Heather Hart said that White
told her Andrea was leaving. (Id., p. 832.) Finally,
White himself testified to his marital problems. (Dkt. 25,
Ex. 2H, pp. 1140-42.) Therefore, the jury knew of White's
statements about his marriage and children from sources other
than Sessa.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;White
also gave Sessa a description of events immediately prior to
Andrea&#39;s disappearance on the night of July 11. Sessa
testified that White told him that he and Andrea had sex and
then had an argument. (Dkt. 25, Ex. 2G, pp. 899-900.) White
told Sessa that Andrea slapped him, and also told Sessa that
after the argument, Andrea pointed a gun at him and pulled
the trigger, but the gun misfired. (Id., pp. 902,
908.) He stated that he slapped the gun away and that Andrea
then picked it up and walked out of the house. (Id.,
pp. 902-03.) White told Sessa that ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.